Citation Nr: 1317405
Decision Date: 05/28/13 Archive Date: 06/06/13
DOCKET NO. 10-20 731 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for bilateral defective vision.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
James R. Siegel, Counsel
INTRODUCTION
The Veteran served on active duty from March 1952 to March 1954.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for service connection for bilateral defective vision. This case was before the Board in January and April 2013, and was remanded on each occasion for additional development of the record.
In its April 2013 determination, the Board denied service connection for bilateral flat feet. Accordingly, this decision is limited to the issue set forth on the previous page.
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002).
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
The Veteran asserts service connection is warranted for bilateral defective vision. As noted in the previous remands, a history of eye trouble was noted on a report of medical history in March 1952. Under the physician's summary, it was stated the Veteran had myopia, and that he had worn glasses for the previous two years. No organic eye disease was noted. The entrance examination in March 1952 revealed defective vision. Distant acuity was 20/36 in the right eye and 20/100 in the left eye. Visual acuity was correctable to 20/20 in each eye. The eyes, an ophthalmoscopic examination, the pupils and ocular motility were normal on the separation examination in March 1954. Distant vision was 20/50 in the right eye and 20/40 in the left eye. It was indicated that visual acuity was not correctable.
Virtual VA records show the Veteran has cataracts in both eyes, and pseudophakia in the right eye.
Thus, the evidence establishes the Veteran had a correctable visual loss when he entered service, but not upon his separation from service.
Following the February 2013 VA examination of the eyes, the examiner diagnosed pseudophakia and stated it was not incurred in or caused by service. It was also noted the Veteran had corrected visual acuity of 20/40 or better in each eye, and that he had postoperative cataracts, bilaterally. The examiner stated the alleged delay in obtaining glasses in no way altered or affected the natural progression of the Veteran's refractive error.
The examiner was requested to clarify the comments to her original opinion. However, her May 2013 opinion essentially reiterates the statements she made following the February 2013 examination. Thus, the question still remains whether any current eye disability is related to the non-correctable visual acuity the Veteran had at the time of his separation from service.
The Board is obligated by law to ensure that the RO complies with its directives, as well as those of the United States Court of Appeals for Veterans Claims (Court). The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Board regrets any further delay resulting from this action.
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.)
1. Schedule a VA examination of the eyes. The examiner should be instructed to state whether the Veteran had eye pathology in service, to include on the separation examination and, if so, indicate whether it is at least as likely as not that any current eye disorder, to include cataracts and pseudophakia, is related to the non-correctable visual impairment documented on the separation examination. The rationale for any opinion should be set forth. The claims folder should be made available to the examiner in conjunction with the examination.
2. Following completion of the above, the RO should review the evidence and determine whether the Veteran's claim may be granted. If not, he and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).